People ex rel. Gately v. Sage

On the 30th day of December, 1892, on a conviction for assault in the second degree, in the court of sessions in Kings county, the relator was sentenced to be imprisoned in the state prison at Sing Sing for the term of 5 years, and to pay a fine of $730, and in default of the payment of said fine it was adjudged that he be further imprisoned in said state prison until said fine be paid, not exceeding 730 days, in addition to said term of 5 years. By allowance for good conduct, the relator’s term of imprisonment was reduced so that it expired on the 30th day of July, 1896. He failed to pay his fine, and for such failure the appellant continued to hold him in confinement. Thereupon the relator sued out a writ of habeas corpus, returnable before the county judge of Westchester county. On the return of such writ the relator was discharged. From the" order discharging the relator, this appeal is taken.

On the hearing on the writ before the county judge, the relator contended that he could not be imprisoned for nonpayment of his fine for any time beyond the maximum term of imprisonment which the court was permitted by statute to impose on his offense, and which in fact it did impose in his case. We think this objection is without substantial merit, and requires no extended discussion. By section 221 of the Penal Code, assault in the second degree is punishable by imprisonment in a penitentiary or state prison for a term not exceeding five years, or by a fine of not more than $1,000, or both. The provision that the term of imprisonment shall not exceed five years applies only to the term of absolute imprisonment which the defendant must necessarily undergo, and not to imprisonment to which he is subjected as a means to compel him to pay the fine. It has always been the practice to enforce the payment of a fine, when imposed as a punishment for crime, by a direction that the defendant stand committed until the fine be paid. In fact, it may be questioned whether there are any other means by which to collect a fine. In Rex v. Woolff, 1 Chit. 401, it was held that a writ of levari facias could issue against the defendant’s property, though it appeared that for a precedent for such a writ it was necessary to go back for 150 years. Mr. Archbold, in his work on Criminal Pleading and Practice (page '205), intimates that such a writ can be issued by the court of king’s bench - alone. I cannot find in this state that any process against property has been issued for the collection of a fine. The revisers recommended to the legislature certain provisions for the docketing as an ordinary judgment of a sentence to pay a fine, and for the issue of execution thereon (3 Rev. St. [2d Ed.] p. 850) against the property, but these provisions were not adopted. In Kane v. People, 8 Wend. 203 , the chancellor, in his opinion, states that the writ of levari facias could be issued. The concurring opinion of Senator Seward does not proceed on that

The learned county judge, however, was of opinion that, while the defendant might be imprisoned for default in the payment of his fine, such imprisonment could only be directed in the county jail. This opinion he based on the language of section 488, Code Cr. Proc.:

“When the judgment is imprisonment in a county jail, or a fine and that the defendant he imprisoned until it be paid, the judgment must be executed by the sheriff of the county. In all other cases when the sentence is imprisonment, the sheriff of the county must deliver the defendant to the proper officer in execution of the judgment."

In this view he is supported by the decision of the supreme court of California in Ex parte Arras, 78 Cal. 304 , 20 Pac. 683 , where it was held that the defendant could not, for default in payment of his fine, be further imprisoned in the state prison. I think the language of this section—that the judgment be executed by the sheriff—can be entirely satisfied by confining its application to cases where the only sentence imposed on the defendant is a fine, or fine and imprisonment in the county jail. Previous to the Code of Criminal Procedure, I can find no statute prescribing where a defendant should be imprisoned in default of the payment of a fine. At common law, all felonies, except two, according to Sir James Stevens,—petit larceny and mayhem,—were punishable by death. To these exceptions Mr. Bishop adds a third,—rape. Misdemeanors were punishable by fine and imprisonment, as also by corporeal punishment. Though fines were often very large, sentences of imprisonment rarely exceeded the term of two years. All serious crimes being thus capital, and no long terms of imprisonment being prescribed for offenses, there were no institutions like state prisons in England until comparatively recent times. As the law became more humane, the punishment for many felonies was reduced from death to transportation, and, after the colonies protested against the reception of criminals, finally prisons for convicts sentenced to long terms of penal servitude were established. It thus happened that, until a recent period, there were in that country nothing but

The order appealed from should be reversed, and the relator returned to the custody of the appellant. All concur.